IT IS IMPOSSIBLE to describe credibly an action at law in Athens before the production of Aristophanes' Wasps in 422 B.C.E., and it is venturesome to make such an attempt for the late 5th century. The basis for reconstruction is principally an assumption concerning what is and what is not taken for granted in a burlesque of the Athenian court system, enlightened from time to time by early commentators' attempts to explain obscure words or allusions. Nevertheless, whatever one thinks can be gleaned from such sources, the sources themselves appear rich and secure when compared with the available evidence concerning judges and courts for the preceding two hundred years. No contemporary author serves as a guide to that period. All accounts and quotations come from later authors, some of whom were heirs to traditional misinformation, while others had private reasons for invoking the past. Yet almost none of them had access to archival documentation.
If Drakon's axones, when republished in 408 B.C.E., preserved original substance and detail, valuable fragments of early legislation show a way to imagine how an early judicial action might have proceeded.1 If Demosthenes preserves authentic tradition when he has Drakon be the founder of all the Athenian homicide courts (6), the basis exists for reconstruction of a site (the Areopagos) and some specified venues for specified trials (Palladion, Delphinion, Prytaneion, Phreatto). Given both conditions, a sketch like the following can be essayed: If one Athenian killed another in the years after publication of Drakon's code in 621/0 B.C.E., the decedent's kin (to a stipulated degree of relationship) or phyle must either prosecute the homicide or end by other means a quarrel that necessarily existed between families of the homicide and decedent. The decedent's kin could accept blood money and so agree to end the quarrel. If, however, the kin prosecuted, their way of phrasing the charge, together with the defendant's response, would determine in what homicide court the trial was to take place. A given death could, for instance, be represented or argued as having been voluntary, involuntary, or the result of an act of self-defense or of a legitimate attempt to protect the sanctity of one's home. How determination of venue finally was made can perhaps be inferred;
possibly, the basileus was in the end bound to abide by the wishes of the prosecutor. Whatever the details of procedure, fifty-one ephetai acted as judges2 and delivered a verdict (8myvavat), and the basileus pronounced judgement (&txaCetv).3
1 Stroud (1968, pp. 75-83) presents a case for responsible use by Aristotle of substantially authentic Draconian and Solonian texts. Cf., however, K. Walters, "The 'Ancestral Constitution' and Fourth Century Historiography in Athens,"
AJAH 1, 1976 [129-144], pp. 129-135.
2 Homer and Hesiod, the earliest witnesses to juridical proceedings before the time of Drakon, do not attest Athenian practices: Wolff 1946, pp. 34-62. It is worth observing, however, that in the Homeric judging scene, Iliad 18, lines 497-508, a single, princely magistrate does not preside as judge; this function is served by a board or panel of elders attended by fellow citizens. In a later instance, Myron of Phlya and a court of 300 dikastai are chosen &pLarlv8)v:
Plutarch, Solon 12. Jacoby (1949, p. 367, note 81) says the time is not after the expulsion of the Peisistratids. Note the account of 50 plus 50 judges (who become known as ephetai) at Palladion (45, 46, 48, 50, 53).
3 See IG I3 104 with Stroud 1968. Cf. Gagarin 1981, pp. 37-48. Humphreys (1983, pp. 231-251) lists assemblage of judges, arbitration, and self-help as the basic ways of resolving questions of justice in early days. At p. 235, note 11, she distinguishes between &x&miv and 8tayvivat in Drakon's homicide law: "... conceivably the ephetai decided between solutions proposed by the basileis." A different distinction can be suggested, however, namely, to utilize the force of 8La- in LtaYV6VaL as comparable to that in 8taxp(vevw, or ta$ypetv Ta< pijyous, and the subsequent counting,
© American School of Classical Studies at Athens For personal use only. License: CC-BY-NC-ND.
A truly extraordinary innovation at Athens was the large judging body composed of ordinary citizens, whatever the term citizen may be taken to mean in 590 B.C.E.4 This was the heliaia,5 which Aristotle describes as established for the first time by Solon (Ath. Pol. 7.3). Since the judges were numerous, it is a reasonable inference that they were not exclusively great landowners. This particular element of the Athenian judiciary system is one that endured (supposing that Solon did bring it into existence) for over four hundred years. It is extraordinary in concept, namely, that ordinary people have a right to judge, and in the very fact that it came to be without (so far as is known) generalized bloodshed. Judgments at Athens were those that allowed or disallowed life, death, freedom, exile, property ownership, trespass, family security; all, in short, that constituted existence both civic and personal. Where else in the history of human settlements has a king or ruling class, or anyone who has had power over others and has not been defeated in battle, relinquished peaceably a right to utter and execute such judgments? In the absence of any responsible account of the years that preceded these vital changes, unanswered questions remain.
An assembly of citizens (ekklesia) already established at Athens before Solon's time (exactly when is not known)6 participated in some general decisions but perhaps did not, as later, decide all questions of state (whether to go to war or make peace, to send for ambassadors, or to ask for a new set of laws).
One state function the ekklesia could not perform was that of judging questions of right and wrong where individuals were implicated. Another body, separate and distinct, was necessary for that:
hence the heliaia.7
The word 1Xicaca as used in Athenian texts of the 5th, 4th, and 3rd centuries B.C.E. means quite different things in different contexts: a heliaia can be a panel of heliasts, which is to say dikasts.
It can be two or three panels brought together to form an enhanced body of heliasts or dikasts (110). "Heliaia" as a site where trials are held provides a name for the site or building in which the trial takes place. It can also be the proper name of a known building (118). While these senses of the word have been generally recognized, one important use, persistently overlooked, has only recently been enucleated.8 It is that "heliaia", as the entire system of popular courts, distinguishes that particular area of the state's functioning from that of the boule and the ekklesia (114, 123).
One could say "heliaia" to invoke "court" in its generic sense when, for example, defining court procedures for allies (130, 131) or authorizing a scrutiny of qualifications for citizenship (132).
8bapL9tiLiv. The sense is that a dikastic panel or a panel of 51 ephetai has only a yes or no decision to make. This highly restricted choice is the basis of Hippodamos' criticism of voting methods in the 5th century and a reason for his proposed reform (Aristotle, Politics 1267b22-1268b3). Whatever this yes or no decision may be, it is not official or applicable until pronounced by the basileus. When the basileus pronounces judgment, he states the right, i.e., nix&te2:
see Wolff 1946, pp. 34-57 for this sense of the word. After the pronouncement of the basileus, the herald can then announce (&vaxV)piT'T?v) the verdict to the judging panel and others assembled in court. A compound form of the verb, 9a8x9i8LV, which is used in inheritance cases and elsewhere (see, e.g., 96) could mean that a presiding magistrate must distinguish between two or more claimants first and then state what the verdict is, i.e., &x&itev. At Demosthenes 23.28 (134), I take this to be the distinction between prescribed duties of archons and heliaia. A prosecutor brings the homicide to whatever magistrate is competent to assign the case a place on a court calendar. After the magistrate has done that, he will on the proper day attend the trial. After a heliastic court has come to a decision, i.e., stayLyvxeLv, he pronounces judgment, i.e., 8&xaCe. In accordance with this sense of the verb, the clause 1v Exa1CTOL 8xaacrat eaCIv can be glossed, "charges concerning which each is authorized to pronounce judgement." Cf. Hansen 1981-1982, p. 27.
4 See, e.g., Hignett 1952, p. 79.
5 I use the familiar spelling. On "eliaia", see Ostwald 1986, p. 10, note 27.
6 See, e.g., Hignett 1952, p. 74, 84; Busolt and Swoboda 1920, p. 443; and Ostwald 1986, p. 77.
7 Hansen 1981-1982; Ostwald 1986; and Hansen 1989, "Addenda," pp. 258-262, present a productive exchange concerning the early heliaia. The following sketch draws on contributions made by both scholars.
8 Hansen 1981-1982, pp. 10-15.
© American School of Classical Studies at Athens For personal use only. License: CC-BY-NC-ND.
In such uses, "heliaia" is interchangeable with r&a 8txacrfpta or even n6 8txCac)Tptov.9 Other components of the Athenian judicial system as a whole, such as public and private arbitration, trials at deme or phratry, 8txtaral xat&"a 8biouq, summary judgments by magistrates, and homicide courts are not included in the formulation "heliaia". Homicide courts, however, can be included under the term &a 8txaaxr5ptt a (see "Nomenclature," p. 3 above). It is noteworthy that the earliest examples of "heliaia" in its generic sense are found in quotations from Solonian laws (134, 136, 138).10
The word heliaia is described by authorities today as cognate with an Ionian word &X '<,
"assembly".1I "Heliaia" might be supposed therefore to denote from the start any sort of assembly.
In recent studies it has been customary to appeal to cognates of "heliaia" and postulate, accordingly, a single, large judging assembly, sometimes even the full assembly of citizens that would be called ekklesia in another function.12 But a cognate of words that denote "assembly" need not by itself imply only and exclusively the principal assembly of the city. 13 At Athens, an original assembly called heliaia would have been composed of heliasts, and a subdivision of that assembly (a panel of heliasts) would likewise have been called heliaia. That is, each court or panel (as Solon might have designed the system) was convened in accordance with the administrative responsibilities of a single magistracy or board. That Solon did design such a system is not a difficult supposition, since it does no more than retroject a practice of the 5th century.
Two post-Solonian citations of Solonian legislation can reflect Solon's actual language.14 Although "heliaia" in these fragments has been construed as referring to the Athenian assembly acting in its judicial capacity, nothing in the laws as they are quoted need imply such an assembly.
The heliaia is invoked in the 5th, 4th, and 3rd centuries when a certain kind of judicial action is to be judged within the system of popular courts. The word "heliaia" is not attested in the 5th century as necessarily presenting any information about size. As a denotation of the whole judiciary
9 See Hansen 1981-1982, pp. 9-15. Cf. introduction to 133-138. Cf. 98, 130-132. LSJ does not include this meaning, s.v. XLtaca. Note 136, a law that directs the Eleven to take certain cases to the heliaia. The meaning of
"heliaia" here may be "that department of the system as a whole to which the Eleven takes cases." The actual venue might have been the Parabyston. Cf. Hansen, op. cit., p. 16: "We need not be surprised if a new source should turn up, telling us that an action was heard by the heliaia in the Parabyston."
10 Jacoby (FGrHist 324 F59, commentary, p. 150) cites "an old suggestion of Th. Bergk in Verh. 9 Philol. Vers. 1847 which is primafacie attractive," that Kleisthenes can be assumed to have established four permanent courts, three of which were presided over by the three archons and the fourth by the thesmothetai. Bergk, it can be seen, took over the system as it seemed to him to have functioned (in its essentials) in the early 5th century, a system that could be referred to in its entirety as "heliaia", and assumed it to have been the one that existed in Kleisthenes' time. It seems a natural step to turn back a little further and postulate a similarly composed heliaia in Solon's day. That is, whether Solon or Kleisthenes established the heliaia, the term could have been used early in the 6th century B.C.E. as it was used in mid-5th century to denote four sorts of heliastic court. A body of heliasts, who were defined by the oath they swore, could have been divided by tribes, as soon as it became obvious that 5,000 or 6,000 heliasts when convened as a whole constituted an unwieldy mass. That assembly of sworn heliasts, however, could be an assembly without having to be the assembly; cf. Hansen 1981-1982, pp. 27-39.
l See Chantraine 1968 and Frisk 1960, s.v. &Xkl.
12 The heliaia as the assembly acting in a judicial capacity is accepted by Staveley (1972, pp. 25-26), Bonner and Smith (1938, pp. 151-158), Hignett (1952, pp. 97-98), and Rhodes (1981, p. 160), to name only a few representative authorities. Cf. Hansen 1981-1982, p. 45, note 83.
13 &Mot can denote merely one sort of assembly, as in a 5th-century treaty between Knossos and Tylissos (Meiggs and Lewis 1989, no. 42, line 44). Hansen (1981-1982, pp. 28-30) makes this same point, citing other examples. Cf.
Ostwald 1986, p. 10, note 29.
14 E6Xwvoq N6[ot. 1966, F16 (Lex ap. Dem. 23.28) 'rhv S' XLtaEav iLaytyvwxaev and F23c (Lysias 10.16) i&v 7tpoaotito7i L t )XLtala (cf. F23d, Lex ap. Dem. 24.105).
© American School of Classical Studies at Athens For personal use only. License: CC-BY-NC-ND.
system, it can refer to the meetings of separate courts all on the same day or one after another on different days. Note also that by the middle of the 5th century, Athenians could say "heliaia"
for their system of popular courts as a whole and yet use the same word for a single panel within that system, one convened by the archon, basileus, or thesmothetai,15 or (at some point) the Eleven, each meeting at a designated building. "Heliaia", therefore, possibly in Solonian laws and clearly in the 5th, 4th, and early 3rd centuries B.C.E., could denote at the same time the whole heliastic court system or a single heliastic panel, whether enhanced or not.
If "heliaia" is an abstract word for the whole system of popular courts, Aristotle, in saying that Solon founded the heliaia, could have meant that Solon founded the whole system of popular courts. Imagine accordingly a number of courts instituted by Solon, say, four, for the sake of example, each under the presidency of a magistrate.16 Under Peisistratos, when these popular courts did not function, the Council of the Areopagos was chief (and conceivably the only) court.
When Kleisthenes rearranged the administrative divisions of Athenian citizenry in 508/7 and made a democracy practicable, the Areopagos as established court continued to be preeminent. Until well after the Persian Wars and perhaps partly because of them, the Areopagos was the chief court at Athens. But in 462 Ephialtes in some way was responsible for limiting and transferring certain powers from the Areopagos to the popular courts (86). When this happened, that is, when there was again a system of popular courts, there was again a heliaia. Now its constituent parts were called dikasteria. To retreat briefly to Solon's time, it is within the realm of possibility that panels of the heliaia existed and were called dikasteria as early as 590 B.C.E., but there is no need to press the question: in Solon's Athens, density of population was not comparable to that of the 5th and 4th centuries. One therefore cannot very well postulate a press of legal business that would necessitate numerous panels of "judges".17 The system as attested in the 5th and 4th centuries, when courts needed to meet many days of the year, surely came into being long after Solon. If, however, in Solon's time, the Court of the Archon met only one day a month, and the Court of the Basileus met once a month, and the Court of the Polemarch met two or three times a month (these are wholly arbitrary numbers), it would still be possible for Athenians to have called the system in which these various courts functioned "heliaia".
15 nXtata roxv Oeaio9niTv may be a particular panel of heliasts, but the phrase can also invoke the system: see
"Nomenclature," pp. 3-4 above. Note that the phrase cxapa Ld ToXei&ppXnt, cited by Wade-Gery in "The Judicial Treaty with Phaselis and the History of the Athenian Courts" (Wade-Gery 1958, pp. 185-186) as evidence for a summary court administered by a single magistrate, is like a phrase used by Aristophanes (Ekklsiazusae, line 655), viz. 8tap.a ToE
&pXouat, at a time when the system of popular courts was fully established. A phrase consisting of the preposition nap6 + magistracy in the dative case is not enough even in a judicial context to establish the existence of a summary tribunal. Cf. MacDowell 1978, p. 33.
16 In Solonian laws, the formula &v f hXtala tpoartqia7L should not be taken to mean "if one huge assembly add a penalty" but rather "if one of the magistrates' courts add a penalty," i.e., if the trial goes from summary judgment to a trial. cpEea7L< in that case will be a transfer from summaryjudgment to trial before a heliaia, i.e., a panel of heliasts. Cf., however, E. Ruschenbusch, "'EcpeaiL, Ein Beitrag zur griechischen Rechtsterminologie," ZRG 78, 1961, pp. 386-390 and Hansen 1981-1982, p. 37.
17 Smith 1925, pp. 106-119. Cf. Hommel 1927, p. 36, note 80a.